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Osborne v. Hardin

Court of Appeals of Tennessee, Knoxville

January 30, 2017

JACK OSBORNE, ET AL.
v.
MICHAEL HARDIN

          Session November 22, 2016

         Appeal from the Chancery Court for Unicoi County No. 7799 John C. Rambo, Chancellor

         Jack Osborne, Margaret Howell, and Kathy Street (collectively "Plaintiffs") sued Michael P. Hardin ("Defendant") seeking to extinguish any right Defendant had to a right-of-way ("the Right-of-Way") on real property located in Unicoi County, Tennessee. After a trial, the Chancery Court for Unicoi County ("the Trial Court") entered a judgment finding and holding, inter alia, that the Right-of-Way is for the benefit of both Plaintiffs and Defendant and neither may block or impede the other's use of the Right-of-Way. Plaintiffs appeal to this Court raising issues regarding whether the Trial Court erred in setting aside a judgment by default and proceeding with trial, whether the Trial Court erred in proceeding with trial in the absence of two of the Plaintiffs, and whether the Trial Court erred in finding that Plaintiffs failed to prove adverse possession. We find and hold that the Trial Court did not abuse its discretion in setting aside the judgment by default, that Plaintiffs never objected to proceeding with trial in the absence of the two Plaintiffs, and that Plaintiffs failed to prove adverse possession. We affirm the Trial Court's judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;

         Case Remanded

          James D. Culp, Johnson City, Tennessee, for the appellants, Jack Osborne, Margaret Howell, and Kathy Street.

          James S. Pate, Erwin, Tennessee, for the appellee, Michael Hardin.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR. and JOHN W. MCCLARTY, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         Plaintiffs filed their Complaint to Quiet Title in April of 2015. On August 10, 2015, Plaintiffs filed a Motion for Default alleging, in pertinent part, that Defendant had been served with Plaintiffs' complaint by hand delivery on July 2, 2015, and that Defendant had failed to answer the complaint. A hearing was held on the Motion for Default on September 10, 2015. Defendant appeared pro se at the hearing on the motion for default intending to defend against Plaintiffs' complaint. After the hearing on the motion, the Trial Court entered an order on September 10, 2015 granting Plaintiffs judgment by default and extinguishing Defendant's right to use the Right-of-Way.

         Defendant then hired an attorney and filed a motion to set aside the September 10, 2015 judgment by default alleging that Defendant was pro se when he was served with the complaint and did not understand the significance of the papers served on him, that Defendant did appear in court prepared to defend against the complaint when he received notice of the hearing, that Defendant would be able to prove his right to use the Right-of-Way, and that Plaintiffs would not be prejudiced if the suit were reinstated. After a hearing, the Trial Court entered its order on December 8, 2015 setting aside the September 10, 2015 judgment by default and setting the case for trial. In its December 8, 2015, order the Trial Court found and held, inter alia:

[Defendant] testified that he was self-represented during the initial course of the adjudication of this case until he retained Mr. Pate for the purpose of setting aside the default judgment. He testified, and the Court finds his testimony persuasive, that he did appear in court on September 10, 2015, with his deeds and records for the purposes of proving his title, and he appeared with the idea that he would have his day in court and would assert why he believes Plaintiffs are not entitled to the judgment that they received.
He operated under the assumption that when he was noticed to be in court that when he appeared in court he would then have his opportunity to have his access to justice. He operated without the benefit of legal counsel, but his actions reveal to this Court that he had no intention of willfully allowing a judgment to go against him without attempting to defend himself. He did not ignore the notice to come to court; he was here.
He has asserted what may be a meritorious defense and the record is not persuasive that Plaintiffs will suffer prejudice if the default judgment is set aside. His inadvertence in not answering the complaint was excusable because he did come to court when he thought he had an opportunity to address the merits of the matter and he has failed procedurally.
This is a case where the Court is cognizant that the public policy of the State of Tennessee is that justice favors trial on the merits, and in this case the default judgment is set aside and the case shall be set for trial.

         The case proceeded to trial without a jury in April of 2016.

         Plaintiff Jack Osborne testified at trial that he lives at 458 Rock Creek Road, which is across the street from the parcel containing the Right-of-Way. Mr. Osborne and his wife purchased the 458 Rock Creek Road property in 1973. Prior to that time, Mr. Osborne lived in his parent's house at 461 Rock Creek Road, which is the parcel that contains the Right-of-Way. Mr. Osborne was 16 or 17 years old when his parents purchased the 461 Rock Creek Road property in 1964. At that time there was a barn and a small farm on the property, and it was Mr. Osborne's understanding that Mr. C.E. Tittle used the Right-of-Way to get a tractor in and out. Mr. Osborne stated, however, that he never saw Mr. Tittle "go through there with farm machinery." Mr. Osborne testified that after his parents purchased the property, Mr. Osborne never saw Mr. Tittle go in and out of the property. Mr. Osborne stated that he believed that Mr. Tittle died in the mid-1970s.

         Mr. Osborne stated that he never saw anybody use the Right-of-Way. He admitted that from the time his parents purchased the property he was aware that someone else, Mr. Tittle, had the right to use the Right-of-Way "for farm machinery." Mr. Osborne admitted, however, that the description in the deed says nothing about limiting the use of the Right-of-Way to farm machinery. Mr. Osborne never saw Mr. Tittle or Mr. Tittle's heirs use the Right-of-Way, but stated that he has seen Defendant go "through there a few times, but nobody else."

         Mr. Osborne was asked what his parents used the Right-of-Way for, and he stated: "Well, our driveway is within two foot of the house; so we used it for our driveway, probably about 20 foot of it is garden space, and the rest is just grass yard." When asked how large the grass yard section was, Mr. Osborne stated: "it runs all the way across the property; so it's probably around 70 foot at that point." Mr. Osborne stated that they mowed the yard and kept the driveway graveled and maintained.

         Mr. Osborne stated that the driveway was "probably around 14 foot [wide] in the front and it goes back about halfway of the property." The driveway abuts Rock Creek Road. Mr. Osborne stated that they put gravel down "probably [in] '65 because we, you know, when we moved in we had some things to do." The section with the gravel does not extend all the way to Defendant's property.

         Mr. Osborne testified that about ten or twelve feet of the garden area extends into the Right-of-Way. He stated that he maintained the garden "since 1964, " and further explained: "My parents did it for some years and then we've maintained it for several years. And after Dad got sick in the '80s, then I pretty well maintained it myself after that." Mr. Osborne stated that from the time his parents purchased the property until the mid-1990s, they tended the garden "[p]retty much every year." Mr. Osborne admitted that since his father passed away in 2002, they have not tended the garden. When questioned further, Mr. Osborne testified that prior to 2002, the last time he tended the garden was in the mid-1990s. He also admitted that he did miss "[m]aybe a couple" of years because he was working and was too busy.

         Mr. Osborne testified that he never erected any buildings in the Right-of-Way, but stated that he has a storage building in the area that might extend part way into the Right-of-Way. Mr. Osborne, however, was unsure if the building actually did or did not extend in to the Right-of-Way. He admitted that the storage building does not block the Right-of-Way. The storage building has been there for approximately two years.

         Mr. Osborne never asked anyone's permission to use the Right-of-Way. He was asked if he ever tried to block the Right-of-Way, and he stated:

No. . . . Let me - - let me take that back. A few years ago, when [Defendant] got involved and was talking about building a road and he was telling our neighbors that he was going to build a road through there and that he owned part of this and so forth - - so I went back there and I put up a no-trespassing sign because, you know, we'd maintained that for 50-some-odd years and I ...

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